The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court is coasting to the end of the term. At this point, we have had zero blockbusters. And, with about two weeks remaining till the end of the term, the biggest cases remain. By my count there are 18 outstanding cases. Who will write them? I'll break them down by sitting.
Only two cases remain from the November sitting: Fulton and California v. Texas. I made my predictions last week. The Trenton native has the religious liberty case from his backyard of Philly. And the Chief will break my heart in yet another Obamacare case.
Ten cases were argued in the December: Trump v. N.Y., Van Buren, Nestle, CIC Services, Edwards, Hungary/Germany, Facebook, Henry Schein, and Collins. The Trump-era apportionment case was tossed two weeks after it was argued. And Henry Schein was DIG'd. Only two cases remain undecided from that sitting: Nestle and Collins. And four Justices have not written for this sitting: Thomas, Breyer, Alito, and Gorsuch. The DIG in Henry Schein, and the remand in Trump, complicates the process of elimination.
Roberts already wrote in December. Would he dare give Collins to Justice Thomas? Unlikely. CT's views on severability are idiosyncratic. Though I suspect the remedial aspect of Collins will be closely tied to California v. Texas. Additionally, Thomas has already written six majority opinions. I think CT is done for the term. (He may have had the Trump apportionment case). More likely the Chief assigned Collins to Justice Alito, who (as of today) has only 3 majority opinions. And then Gorsuch would have Nestle on the Alien Tort Statute. I doubt Breyer will be in the majority in Nestle, but he will likely write the dissent.
Five cases were argued in the January sitting. Four were already decided: Uzuegbunam (Thomas), AMG Capital (Breyer), Prometheus (Kavanaugh), and BP (Gorsuch). Only one case is outstanding: Guzman-Chavez. I don't have a strong prediction here. I'll give this statutory interpretation case to Barrett. She was very active during oral arguments on statutory nuance.
Six cases were argued in the February sitting. Three were already decided: Florida v. GA (Barrett), Dai (Gorsuch), and Carr (Sotomayor). I predict that Roberts has Arthrex. He has written the majority opinion in the leading Appointment Clause cases (Seila Law, PCAOB). And he has a preferences for cases involving judicial independence (Stern v. Marshall, Williams-Yulee). I predict that the Chief assigned Brnovich, the election case, to Alito. Lange involve the exigent circumstances doctrine. Justice Kavanaugh discussed exigent circumstances in Caniglia v. Strom. I am tempted to predict Kavanaugh has the majority in Lange and (shocker) cites his previous separate writing to make it a majority opinion. But Justice Kavanaugh already has five assignments. Justice Sotomayor is due for an assignment on a CrimPro case to balance things out. Hard to believe, but if Roberts, Thomas, Breyer, and Alito are in dissent then Sotomayor could assign it to herself (I think) for the first time. The Boomer Caucus v. Gen-Xers.
Six cases were argued in the March sitting. Only two were decided: Cooley (Breyer) and Caniglia (Thomas). Four other cases are outstanding. NCAA v. Alston, a messy antitrust case, seems like a good fit for Kavanaugh, a D.C. Circuit stalwart and a sports fan. Let's hope there is no Flood v. Kuhn-like fact section; but there will be some virtue-signaling about the virtue of student-athletes. TransUnion, a case about Rule 23 and injuries, has a Kagan vibe to it. Goldman Sachs is an ERISA case. I think the junior justice must write that one as a hazing ritual. Sorry ACB. What about Cedar Point, a case that involves labor unions and the Takings Clause? I would be inclined to say Alito, but he has several other huge assignments. I'll go with Gorsuch.
There were thirteen cases argued in the April sitting--that total includes Terry, which was rescheduled for the May sitting. Seven have already been decided: Sanchez (Kagan), Greer/Gary (Kavanaugh), Hotels (Alito), Guam (Thomas), Palomar-Santiago (Sotomayor), and Terry (Thomas). There are six remaining cases: PennEast, Minerva, Mahanoy, AFP/Thomas More v. Bonta, Chehalis, and HollyFrontier.
Justice Thomas already wrote twice for April, so I doubt he has any of the remaining opinions. Here are my rank predictions for the remaining six cases. PennEast is a FERC case. Again, this would usually go to BK. But he already has too many assignments. Once again, ACB gets the boring case. Breyer has the patent case in Minerva. He likes those technical cases. I pray that Kagan has the majority opinion in Mahanoy. Generations of students will relish in reading that decision. And she would finally get a majority opinion in our casebook. Roberts likely assigned himself the majority in AFP/Thomas More v. Bonta. Chehalis Reservation is an Indian case. Gorsuch is a good bet. Barrett may also have HollyFrontier, a statutory case.
Here is a breakdown of my predictions. Roberts would have five assignments. Everyone else would have six or seven.
- Roberts: AFP/Thomas More v. Bonta, Arthrex, and California v. Texas. Roberts currently has two assignments, and would have five in total.
- Thomas: No more majority opinions; he already has six.
- Breyer: Minerva. Breyer currently has four, and would have five in total.
- Alito: Brnovich, Collins, and Fulton. Alito currently has three, and would have six in total.
- Sotomayor: Lange. Sotomayor currently has five assignments; she would have six in total.
- Kagan: Mahanoy, TransUnion. Kagan currently has four assignments; she would have six in total. She will also have several bitter dissents.
- Gorsuch: Cedar Point, Nestle, Chehalis Reservation. Gorsuch currently has four assignments; he would have seven in total.
- Kavanaugh: NCAA. Kavanaugh currently has five assignments; he would have six in total.
- Barrett: Goldman Sachs, PennEast, Guzman-Chavez, HollyFrontier. Barrett currently has three assignments; she would have seven in total.
June 15, 2020 was a dreadful day for judicial conservatives. In the span of 30 minutes, the Court denied review in ten Second Amendment cases and decided Bostock. I dubbed it Blue Monday. Four days later, the Chief decided the DACA case. Blue Monday became Blue June.
One year later, we are in a very different place. Trump is out of office. Justice Barrett replaced Justice Ginsburg. And there is an actual presidential commission considering Court Packing. And almost every outstanding case will turn right. Red June lies ahead.
Update: I missed two cases from April, and updated my predictions.